IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           I presided at Mr. S’s trial on two counts of sexual touching of K.V. and D.V., contrary to section 151 of the Criminal Code.   The offences were committed in the latter part of 2011, when D.V. was 9 years of age.  K.V.’s 12^th birthday occurred during the time-span of the offences.   On May 6, 2013, I convicted Mr. S on both counts.   My reasons for conviction have been assigned the neutral citations 2013 BCPC 102;  [2013] BCJ #920.   After I convicted him, Mr. S applied to re-open the trial to lead further evidence.   My reasons for dismissing that application have been assigned the neutral citations 2014 BCPC 17; [2014] BCJ #332.

[2]           K.V. and  D.V. are the daughters of the brother of a woman (N.S.) with whom the accused had an intimate relationship at the time that the offences were committed, and whom he has since married.   At the time of the offences, K.V., D.V., N.S., the accused and several other children all lived in the same house.   The father of K.V. and D.V. also lived intermittently in the house.

[3]           The offences consisted of touching by the accused of the genital areas of K.V. and D.V., through their clothing, while the children were sitting on the lap of the accused.   The evidence is not precise as to how many times this occurred, but two incidents, both on the same day, are clearly established in relation to K.V., and one other, on another day, in relation to D.V.   Because of the psychological damage which it inflicts, any sexual activity between an adult and a child is a serious matter which cannot be condoned or excused.   With that acknowledged, it is appropriate also to note that the nature of the sexual assault in this case was less serious than some others.   In particular, the accused did not employ threats, and committed no act of violence.  No penetration or intercourse occurred.   The children and the accused remained fully clothed throughout.

[4]           Mr. S is 53 years of age.   He has a limited criminal record, comprising one conviction for each of wilful damage to property, possession of stolen property and impaired driving.   Prior to the offences in question, his most recent offence was committed in 1985.   I do not consider his criminal record to be a relevant factor in my sentencing decision.

[5]           Dr. Breitman, a psychiatrist, assessed Mr. S and provided a psychological assessment report.   She diagnoses him with major depressive disorder and alcohol abuse disorder, the latter presently in remission.   She assesses him as a low risk to re-offend.

[6]           Mr. S is a member of the [name redacted for publication] First Nation, and grew up on the reserve of that First Nation.   He is an active participant in the cultural life of his First Nation.   His parents were alcoholics.   Most of the parenting functions for Mr. S were performed by his eldest sister.  He reports that his siblings were physically abused by his parents, but that he was not.   He is estranged from his family.   He reports that he was sent to residential school, where he was sexually abused by another student.   He attributes a later suicide attempt to this incident of abuse.   His memory of the event is imprecise.   In answer to Mr. Whitehead, who prepared his presentence report, he said that it happened when he was 8.   In answer to Dr. Breitman, he said that it happened when he was 13.

[7]           Mr. S continues to deny that he committed the offences of which I convicted him.   When interviewed by Dr. Breitman, he said that D.V. “…  is sensitive and dramatic  …”  and is “…  over-reacting to a minor situation  …”.

[8]           The presentence report provides no information about any restorative justice alternatives which might be available through, or in cooperation with, the [name redacted] First Nation.   I was concerned about the limited information provided to me on that subject, and raised the issue with counsel by a memorandum, in which I referred to the discussion of “restorative justice” found in R vs Laliberte 2000 SKCA 27 (CanLII), [2000] 4 WWR 491;  143 CCC (3d) 503 @ paragraphs 48 – 49, and in R vs Jacko (2010) 2010 ONCA 452 (CanLII), 256 CCC (3d) 113;  101 OR (3d) 1 @ paragraphs 61 – 64.  In response to my memorandum, I received a letter from the Corrections Branch of the Ministry of Public Safety & Attorney-General, which is responsible for the preparation of presentence reports.   The letter informed me that enquiries had been made of the [name redacted] First Nation, and that:

[9]           At the sentencing hearing, Mr. Ritzker advised me that Mr. S adheres to his denial that he committed the acts alleged against him, and that, by reason of that denial, he would not be accepted into any restorative justice program offered by any First Nation.

[10]        In R vs Gladue 1999 CanLII 679 (SCC), [1999 1 SCR 688 @ paragraph 92, the court directed sentencing judges to consider other alternatives to imprisonment even where restorative justice alternatives are not available.   No such alternatives were identified during the sentencing process in this case.   I invited counsel to consider whether the presentence report provided to me adequately addressed the issues identified in Gladue.   No submissions were made in response to that invitation.

[11]        I am also mindful of the following admonition, articulated in R vs DTG 2014 BCCA 84;  [2014] BCJ #376 @ paragraph 32:   “The historic and individual circumstances of an Aboriginal offender are highly relevant to the assessment of moral blameworthiness   …”, and so must be taken into account in the sentencing process.

[12]        Section 718.2(b) of the Criminal Code provides that “…   a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances   …”.   I was referred to two cases in which aboriginal offenders whose personal histories were remarkably similar to that of Mr. S were sentenced for similar crimes.   It necessarily follows that the degree of moral blameworthiness is comparable in each case.   In R vs G(WR) 2011 BCPC 330, Judge Baird Ellan of this court imposed sentence for a similar series of offences over a much longer time period.  After a thorough review of the authorities, Judge Baird Ellan concluded that the appropriate range of sentence for such an offender and such an offence is one to two years imprisonment, and imposed a sentence of one year.  I observe that the accused in G(WR) entered a guilty plea, which was a very significant mitigating factor.  In R vs T.M.B. 2013 ONSC 4019;  [2013] OJ # 3413, the offence was slightly more serious, but consisted of a single, brief incident only.   The court concluded that 8 months jail would have been a fit circumstance were it not for two unusual circumstances described at paragraphs 72 - 73 of the judgment.   No such unusual circumstances are present in the case before me. 

[13]          Mr. S adhered to his not-guilty plea throughout the trial, and continues, after his conviction, to deny that he committed the acts alleged.  

[14]        Because of Mr. S’s not-guilty plea, his victims were obliged to testify.   As noted in my previous decisions in this case, that was very traumatic for them.  However, that is not the only significance of a not-guilty plea.   Early acceptance of responsibility in sexual assault cases, particularly in cases of sexual assault by a family member, can provide significant assistance in the healing process of the victim.   I refer to the following catalogue of mitigating factors identified by the learned trial judge in R vs D.T. 2011 ONCJ 106;  [2011] OJ #984.  “He” refers to the accused in D.T.:

[15]        The guilty pleas in G(WR) and D.T. were very significant mitigating factors, and justified a lesser sentence than is fit in this case, where such a factor is absent.

[16]        Mr. S was convicted on two counts, one in relation to K.V. and the other in relation to D.V.   Mr. Ritzker submits that the sentences on each count should be concurrent.  Mr. Kulla submits that they should be consecutive.   I conclude that they should be consecutive because they were committed against different victims on different days.

[17]        Were it not for the totality principle, I would conclude that a sentence of 9 months’ imprisonment would be appropriate on each count.   Taking the totality principle into account, I consider a sentence of six months’ imprisonment on each count, to be served consecutively, to be appropriate, and I impose that sentence.

[18]        In addition, there will be a term of 2 years’ probation on the following conditions:   Mr. S

[19]        There will also be an order: